WHEN SURVIVORS ARE SERVED

Transcription

1 When Survivors Are Served: FAQ for Advocates WHEN SURVIVORS ARE SERVED an FAQ for advocates working with survivors who have been served with a domestic violence protection order in King County 1

2 INTRODUCTION A domestic violence protection order is a civil court order. It is intended to be filed by a survivor of domestic violence against the person who is abusing them. While it is not a guarantee of safety, a domestic violence protection order may be an important part of a survivor s safety plan. Unfortunately, abusive people sometimes file for a domestic violence protection order in an attempt to further isolate, intimidate, and control their intimate partner. This is a particular vulnerability for LGBTQ survivors as abusive partners may exploit the lack of knowledge and expertise within the legal system about domestic violence in LGBTQ relationships. The following FAQ was prepared for advocates working with survivors who have been served with a domestic violence protection order. KEYWORDS Petitioner This refers to the party who has filed the protection order. In a case where an abuser has proactively filed a domestic violence protection order against a survivor, the abuser is considered the Petitioner. Respondent This refers to the party who has been served with the protection order. In a case where an abuser has proactively filed a domestic violence protection order against a survivor, the survivor is considered the Respondent. Temporary Protection Order (or TPO): an emergency order granted by the court until the next scheduled court date (usually 14 days). It can be entered without notice to the other party. Domestic Violence Protection Order (DVPO or full order ): is entered only after there is: proof that the respondent was legally served, and testimony and a review of the evidence establishing, by a preponderance of the evidence ( more likely than not ) that domestic violence has occurred.!2

3 When Survivors Are Served: FAQ for Advocates I am supporting a survivor who has been served with a protection order by the person who has been abusing them. How can I best assist? If you have assessed that you are working with a survivor (and not the abuser), it is critical to connect the survivor to appropriate resources and support as soon as possible. This document includes basic information. A consultation with an experienced attorney or legal clinic (if your client cannot afford an attorney) is a good next step. If your client was served with a temporary order issued out of the King County Superior Court, you can also contact the Protection Order Advocacy Program (POAP) at one of their two locations listed below to see if they are able to assist. King County Courthouse rd Ave, Room C213 Seattle, WA Phone: Maleng Regional Justice Center th Avenue N, Suite 2-B Kent, WA Phone: POAP is a program of the King County Prosecuting Attorney s Office, Domestic Violence Unit, that employs advocates to assist survivors of domestic violence as they file for civil orders for protection. Their services include DV education, explanation of the process and technical assistance on filing for a DVPO, court accompaniment, resource referral and preliminary safety planning. Can POAP assist someone that has been served with a protection order? POAP advocates can assist most survivors who have been served with a temporary protection order (TPO). There are some situations in which POAP advocates are unable to assist due to a conflict of interest. As employees of the King County Prosecuting Attorney s Office, POAP advocates are not able to assist in the following situations: the survivor is being criminally charged by the King County s Prosecuting Attorney s Office on behalf of the State of Washington, in either a misdemeanor or felony case; OR a full domestic violence protection order (DVPO) has already been entered against your client by the court. In this case, the court either took testimony from both parties and determined that your client committed acts of domestic violence OR your client failed to appear at the scheduled full order hearing and as a result, the court entered the order by default. 3

4 If either of these conflict situations apply, please refer the survivor to the King County Bar Association or another legal aid agency for immediate assistance. Anyone may file for a protection order through the Superior Court Clerk s Office without legal counsel or POAP assistance (Room W378 in the King County Courthouse or Suite 2-C, Window 7, at the Maleng Regional Justice Center). How can POAP help a survivor who has been served with a TPO? While POAP advocates are not attorneys and cannot give legal advice, they can help a survivor explore different options for responding to a TPO. For example, a survivor may want to pursue filing their own protection order (commonly referred to as a cross petition ). In this case, POAP advocates may assist with the process of filing the cross-petition and a temporary order for protection. POAP advocates may help a survivor explore options for filing a response opposing the entry of the order, or in seeking an immediate modification or termination of the TPO. What is the difference between a TPO and a full DVPO? A temporary protection order (TPO) is entered after someone files a petition with the court stating that they need emergency protection. A TPO is set for a short period of time until the next scheduled court date (usually 14 days later) and can be entered without notice to the other party. The court has not made any findings that abuse has happened, but is simply entering the order until the Respondent is served and has an opportunity to respond to the allegations in court. It is important to note that a Respondent may be arrested for violating a TPO once they have been properly served the court documents. A full DVPO is entered only after the Respondent is properly served with at least 5 court days notice and the court determines, after testimony and review of the evidence, that based on a preponderance of the evidence ( more likely than not ) domestic violence has occurred. Most full orders are often in place for one year and may be renewed. Some orders are entered for longer. What if a survivor wants to file their own protection order? A survivor who has had a TPO filed against them may want to file their own petition for an order of protection. This is referred to as a cross petition. They may also consider filing a motion asking the court to realign the parties making the survivor the Petitioner and the other party the Respondent. To do this, they will need to file their own petition alleging that they are actually the victim of domestic violence. POAP advocates are available to help support your client in exploring these or other options and/or writing a petition. In filing a petition, it is important to note that the legal definition of domestic violence is far narrower than the behavioral definition of domestic violence. The legal definition of domestic violence requires: physical harm, bodily injury, assault, including sexual assault,!4

5 When Survivors Are Served: FAQ for Advocates stalking, OR inflicting fear of imminent physical harm, bodily injury or assault between family or household members. My client doesn t want to have contact with their abuser anyway. Does it matter if an order is granted? Do they need to appear in court? If your client has been properly served and does not appear at the full order hearing, the court has the authority to enter the full order by default. The full order will include findings that your client has committed acts of domestic violence against the other party because they failed to appear at the hearing or defend themselves against the allegations. Allowing a full DVPO to be entered by default against a survivor is not the best way to ensure no contact with the other party. A full DVPO only restrains contact from a Respondent to a Petitioner. Therefore, if a survivor is a Respondent, it is only the survivor that is restrained from contact; the other party is not restrained from contact with your client. The survivor will also be subject to arrest and criminal charges if their abuser alleges that they have violated the terms of the order. A DVPO may have other consequences for a survivor. For example: a DVPO violation may trigger deportation proceedings; some professions may prohibit continued employment of a person who is a Respondent on advpo; a DVPO may impact future child custody decisions; a DVPO may appear on a background check for lease application; What is considered proper service of documents? A Respondent must be personally served with copies of all of the documents that have been presented to the court related to the case. This must include: the petition, which contains the request for relief (protections that are being sought) and the allegations; and the temporary protection order & notice of hearing, which includes the date, time and location of the hearing, as well as the restraints your client must abide by until the hearing. A Petitioner cannot personally serve the Respondent with the documents. The Respondent may be served by the police or any other person over the age of 18. Refusing the documents or throwing them away does not negate the fact that a Respondent was served. In some cases, if a Respondent has proved difficult to properly serve, the court can order that the Respondent be served by certified mail at a last known address, or by publication. 5

6 Survivors should be advised that it is better to be served and respond to the court, rather than avoid it and risk having an order entered against them by default. The court requires that a Respondent receive 5 court days notice of the proceedings to ensure that they had proper notice and an opportunity to respond to the action. The court will not enter an order unless there is proof that the Respondent received at least 5 court days notice of the action. Proof of service is the completion of an affidavit called either an Affidavit of Service or a Return of Service where a person 18 year or older swears that they have personally served the respondent with all of the necessary paperwork. It is important to note that once the respondent is served, any violations of a TPO may be reported to the police, regardless of the amount of notice a Respondent has received. The Respondent is entitled to be provided with any other evidence filed by the Petitioner (e.g. police reports, medical records, s, statements from third parties, etc.) in advance of the hearing or in some cases, the day of the actual hearing. If the case is continued at any point (called a reissuance ), the Respondent must also be served with that document as well. Can a survivor respond to allegations prior to the court date? If a survivor wants to respond in writing (called a Response ) to any of the allegations made in the other party s petition, the survivor will need to make arrangements to have the Petitioner served with the Response and any other evidence the survivor wants the court to consider. The court and the Petitioner should ideally receive a copy at least two days in advance of the hearing. Anyone over the age of eighteen, other than the survivor, can serve the other party with the response. To ensure that there are no violations in the service of the response, the survivor may wish to hire a process server or bring the documents to court to have someone give to the Petitioner. Submitting the day of the hearing is not optimal because the other party may seek a continuance or ask that that evidence not be considered. My client was served two days before the hearing and does not feel prepared to respond. Technically, the court cannot enter a full order if the respondent received less than 5 court days notice of the hearing. But to be certain that an order is not entered without proper notice, your client has the right to appear and ask the Judge to continue the case to allow more time to respond to the petition. This is referred to as a Reissuance. Asking for a continuance of the hearing is very important to ensure that your client is given enough time to prepare and respond to the allegations. In most instances of a continuance, the underlying temporary order remains in effect until the next scheduled hearing. In some instances, if there are important matters that need to be addressed in the interim, like contact with a child in common or access to or occupation of a specific residence, the court will generally allow those issues to be addressed and sometimes altered pending the next hearing. For example, if your client s abuser served them with an order that prohibits them from contact!6

7 When Survivors Are Served: FAQ for Advocates with their child, your client would be able to ask for some residential time with the child pending the new, rescheduled hearing date. There is no guarantee that the court will alter the terms of the order during a reissuance but your client has the right to ask. Will an attorney be appointed for my client? The court does not appoint attorneys in civil court matters. If your client would like to have an attorney represent them at a protection order hearing, they must find and hire an attorney at their own expense or apply for free or pro bono services, which are very limited in King County. Community-based domestic violence organizations may be able to provide basic legal advocacy (non-attorney services) and neighborhood legal clinics may be able to provide basic legal information. It is important to act quickly as legal clinics often fill up fast or may have waiting lists. What will happen if my client contacts the Petitioner? If the survivor has been served with a TPO by their abuser, they can be criminally charged for violations of the terms of the order as soon as they have been served - even if their abuser initiates contact with them. If your client has been properly served with the temporary order, they can be arrested or criminally prosecuted for violating any of the terms of the order that restrain or prohibit them from certain conduct. Both TPOs and DVPOs will enumerate a set of provisions based on the specifics of the individual case. Provisions listed under numbers 1-6 are considered arrestable violations. If your client has been properly served and fails to appear at the full hearing, the DVPO is considered immediately enforceable without notice. This is because the original petition serves as notice that a full order could be entered if the Respondent fails to appear. The rules of procedure were designed to protect survivors as the Petitioner for protection orders. When an abuser becomes a Petitioner, these rules may have dangerous consequences on a survivor. A person with a TPO or a DVPO filed against them must abide by the order, even if the Petitioner invites contact. For example, if your client is riding in a car with the Petitioner and they are pulled over by the police for any driving-related infraction; your client could then be subject to arrest for violating the order. Your client is also restrained from having any third party make contact with the Petitioner on their behalf. For example, your client asks her best friend to pass a message to the Respondent for her. This could be considered a third party violation of the order. What will happen to my client if the Petitioner initiates contact with them? If a survivor (who is listed as the Respondent) has any contact with the Petitioner, the survivor is subject to possible criminal prosecution regardless of who initiated the contact. If the Petitioner initiates contact with your client, your client should not respond. Encourage a survivor to let the call go into voic and to refrain from replying to any messages, including s or texts. The survivor should save this correspondence as potential evidence to present in court. If a survivor believes that their abuser is using the protection order 7

8 process to try to get them arrested, they may want to file an order to modify or terminate the TPO on that basis. What will happen if my client runs into the Petitioner at a public place? It is not a violation of the order to be in a public place, unless that place is specifically written into the order as a protected location. However, a Respondent is restrained from any direct or indirect contact with the other party while in that public place. For example, if your client is in a restaurant or business and the Petitioner is present or arrives, it may be in your client s best interest to leave immediately. Your client is also restrained from having any third party make contact with the Petitioner on their behalf. It may be helpful to prepare your client for this situation, including talking through how they might approach such a situation in a public place. What documents or information should my client bring to court? If your client has been properly served, it is important to go through the documents very carefully. When a survivor has information that contradicts what the Petitioner has alleged, they can file that information with the court. If possible, consulting with an attorney to help your client prepare a proper response is recommended. Any information provided to the court must also be provided to the petitioner and the Judge who will be hearing the case.. A good practice is to have your client make 3 copies of any evidence or information your client wants the court to consider and file it in advance of the hearing. Examples of evidence may include: witness statements, police reports, medical records, s, texts, facebook posts, etc. that demonstrate that your client is in fact the survivor of the Petitioner s violence and/or that they did not engage in any of the alleged acts of domestic violence. It is important to remember that any statement made by a witness must be a sworn statement. That means that your witness will need to write their own statement of what they observed and conclude their statement with the following language: I certify under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. They will also need to sign and date the statement and be sure to include the Superior Court case number on the front of the statement. As an advocate, it may be helpful if you provide a letter of support for your client to include in their petition or responsive documents. Once your client makes three copies of their evidence, they will need to provide a copy to each of the following based on where their hearing is scheduled to take place:!8

9 When Survivors Are Served: FAQ for Advocates Copies to: Superior Court Clerk s Office For hearings scheduled in King County Superior Court Room E609 Suite 2-C For hearings scheduled in the Maleng Regional Justice Center Superior Court Commissioner referred to as: Commissioner s Working Copies Window W292 Window 1-E Petitioner Through a third party at or before the court hearing Through a third party at or before the court hearing What happens when a full DVPO is entered against a survivor? If a full order is entered against a survivor, they must abide by all of the terms of the order or risk arrest, criminal prosecution, or potential contempt charges. Any contact, direct or indirect, could subject a survivor to arrest or criminal prosecution even when it is initiated by the Petitioner. Will my client have a criminal record once a DVPO is entered against them? While a protection order on its own does not result in a criminal record, it is a court order that is viewable in a criminal database, and your client may be questioned about it by the police or border patrol (if they try to cross a US border). The court order is also a public record, so anyone can look up your client s name and find the order and read the allegations. Credit agencies are also able to obtain information about protection orders and this information can also be obtained when a person applies for a lease. A full DVPO will include findings that your client has committed acts of domestic violence against the other party. Once a full DVPO is entered, these findings can be used in other actions such as child custody or employment related background checks. If your client is accused of violating the terms of a protection order, criminal charges may be filed against them and those charges will appear in a criminal database. Only conviction information becomes a matter of public record, but the courts, prosecuting agencies, and law enforcement are all able to view any criminal charges that have been filed regardless of conviction. Courts routinely run the case histories of both parties to determine if there are any other civil or criminal cases the parties have been involved with, and will consider these in the full hearing. 9

10 Next Steps While domestic violence protection orders can be an incredibly helpful tool when obtained by survivors to increase their safety and protection, the consequences for survivors being served with a protection order by a current or former abusive partner can be profoundly harmful. As an advocate, it is crucial to respond to a survivor disclosing they have been served with an order as quickly as possible, both to support a survivor to have a clear understanding of the impacts of having a domestic violence protection order filed against them and to begin the process of supporting that individual to proactively address an order that is being used to further harm, isolate or abuse them. Ensure advocates in your organization and community receive training on responding to survivors who have been served with DVPOs (and understand the unique vulnerabilities faced by LGBTQ survivors in this process), and understand how to support survivors in the process of addressing an order filed against them. For more information on Domestic Violence Protection Orders in Washington State, go to When Survivors Are Served: an FAQ for Advocates Working with Survivors Who Have Been Served with a Domestic Violence Protection Order in King County This document was produced by the King County Coalition Against Domestic Violence as part of the LGBTQ Access Project under grant 2011-VFGZ-K014 awarded by the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in here are those of the authors and do not necessarily represent the official positions or policies of the U.S. Department of Justice.!10